FHTH Ep 246 - The Problem with the Ideal Juror Profile

It’s time to forget everything you know on the “ideal juror profile” and ditch the outdated playbook. Capeesh?!

Ok, now that’s out the window…

This episode is for you if you want to learn powerful ways of creating the ultimate "ideal juror profile".

(Spoiler alert: it's not your typical demographic; a woman between the ages of 40-60, college graduate, blah, blah, blah. #Boring.)

Tune in on the episode to find out what I mean by that.

Xo,
Sari

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“So, the problem with the ideal juror profile is you're using it for the wrong reasons. You're trying to find the fix to the defense point when it really is meant to show you that your ideal juror exists. And that once you build those beliefs, that there are principles in there that you can mind for, and then start building your funnels.”
SARI DE LA MOTTE

EPISODE 246 TRANSCRIPT

Well welcome everyone. I am going to remind you yet again to give us a review wherever you listen to your podcast. Spotify, Apple, other places, I don't know. Where do people listen to podcasts? I don't listen to podcasts except for my own. No, there's a couple others that I listen to. But I was just telling someone that I will be in the garage or in the car, and Kevin will open the door and be like, "What are you doing?" And I'm like, "Listening to a podcast," and he's like, "Which one?" I'm like, "Mine," because I say things and then I don't remember what I said again. Like, oh, how did I answer that question? Anyways, chemo brain. I'm telling you, I'm going to use that until it's done. All right, so last week we talked about the five top things or reasons why your jury is not deliberating as long as they should be, and therefore, coming back with a defense verdict very fast.

And we talked in the first step or the first issue is that they're misdirected, they're focused on the defense's case. And I use the example of agency. And so, I want to talk today about, I'm going to use that example again, about why I think this is happening and how it's partially my fault.

So, if we go back to the H2H voir dire method, the first two of the five steps, the first step is to make a fears list.

Which is easy because these are all the things that you are afraid of in your case. And we love to talk about things that we are afraid of. So, that's the first step. Easy step.

Number two is to create an ideal juror profile.

And here's what I mean by that if you are unfamiliar. I have several podcasts talking about ideal juror profile. So, you can go to sariswears.com/podcast and there's a search bar there. You can search any of the topics that I've talked about and you'll find it there. So, the ideal juror profile is not a profile like a demographic profile, like this is the type of juror that would work best for your case. It's a woman between the ages of 40 and 60 who is college educated, etc. That's not what we're talking about when we're talking about the ideal juror profile.

What we're talking about is getting in your mind an antidote to the fears in your case.

So, the way you do it is you start with one of the fears on your list and you ask yourself a question, what would my ideal juror have to believe in order for this not to be a fear anymore? Like to negate or nullify this fear. If this flew out of my juror's mouth, then I would know that that's a good juror for me. And then we get to have fun because you'll say to me, "Well, I don't know if that's what they're going to say." I said, "We're not talking about actual jurors, we're talking about the ideal juror, the juror we all wish we had. The juror that said all the things that we want them to say. What would they say about this?" And so, then you create a belief list, things an ideal juror for you would believe about your bad facts or your fears. And we now have what we call the ideal juror profile.

Now, the problem with that is that it is inadvertently creating or allowing some defense points to get into your voir dire funnels.

What do I mean by that? Or maybe you don't. That the H2H method also involves the funnel method. It's nestled within the method. So, after you create your ideal juror profile, then you find your principles, and then you create your funnels. So, your funnels are, at the bottom is a principle that you are aiming toward that you want the juror to give to you. And there are a series of questions that will get you there.

Now, let's go back to the agency example. So, with the agency example, it was, well, we want the juror to believe, the jury to believe that X was controlled by Y. That this process, or this person, or whatever it may be, in your case, this doctor, this nurse was controlled by this entity versus that entity, because that's always the thing. It's like who's responsible? And the defense is going to want to come in and say, "Well, it's not us because we didn't have control or we're not really the employer. The employer should have done this thing. So, we're not responsible." That is not what your jury needs to believe.

And I can see why you would go there if you were using the ideal juror profile, because on your list of fears would be something like, "Well, I fear that they would blame me when they really need to blame this person over here." And so, you write on your ideal juror profile. Well, the ideal juror would believe this thing. Here's what I want to tell you. That's not true. The ideal juror would believe that it doesn't matter. And that's where I want you to get to, because otherwise, we are in a defense-oriented funnel. Now, here's what I want you to really get about the ideal juror profile because it is beautiful and wonderful, and I don't want to get rid of it.

I just want to caution you against falling into this trap because we do start with defense points and then inadvertently, your ideal beliefs are defense-tinged.Here's what I want you to know. The ideal juror profile is not designed to get you to defend the defenses from the defense. We talked about that last week. Where this is the problem, is that they come in and they say, "None of what you just said is true. Here's what's actually true." And then you spend the rest of the case trying to prove to the jury that what they said is not true versus proving what you say is true. So, the ideal juror profile is not designed to do that. What it is designed to do is to remind you that you stand on the side of the right. It is a stepping stone. It is a place to get our mind right. I don't think I even realized this until I was outlining this podcast. But that is what it is designed to do. Because so many times you guys go through and you list all of your fears, and all you're focused on is your fears, and what the focus groups say, and what the defense is going to say, and all the problems in your case.

And then you create your whole trial strategy around trying to combat their defense. When your real job is to put forth your compelling narrative of what happened here, how it was wrong, how it was avoidable, and how the jury can fix it. That's your job. But you get sucked in to trying to prove them wrong. That's not your job. That's their job, is to try to prove themselves. Two sides should be trying to prove who is right. But what ends up happening is one side is proving who is right and you're trying to prove how they're wrong about being right. That doesn't serve anybody. Well, except for the defense, which we don't want to serve.

So, the ideal juror profile is all about getting you back into the realm of, wait a minute, I stand on the side of the right.

Because the fears list gets you in your head, but the ideal juror profile gets you into your heart. It gets you recognizing that 99% of people are your ideal juror profile. 99% of people do believe that if you hurt somebody, you should make it right. 99% of people believe that family, and love, and time, and experiences are way more valuable than paychecks or being able to pay your hospital bills. It's there to remind you that you are doing the right thing. It reminds me of coaching. So, in coaching, and the way that I always know whether someone has a good coach versus a bad coach, is I always ask what the coaching is like. And if they tell me, and of course they wouldn't be telling me this about our coaches here at H two H because they're trained not to do this, but if they tell me, "Well, I bring a problem and then me and my coach try to solve it," I think that's not good coaching.

What a lot of people are surprised to find is that coaching is not problem solving.

In fact, if you're doing that, you're doing it wrong. What coaching is, is to come together with your coachee, your client, and to help them realize their biggest dreams, to help them become a more fulfilled person, to help them get out of their own way. And so, when we go and we dive in, and we're talking about their problems, what ends up happening is, this client leaves the session thinking more about their problems because what we focus on and create. Whereas what we are trained to do, those of us in the co-active model, is to focus on the dream, and to focus on the fulfillment, and to focus on what they want in their life, not what they don't want in their life, and get them in that space, which guess what? Also lets you solve problems. But now you're coming from a different point of view, a different door, for example.

So, it's really important when you're working with an ideal juror profile, it's the same thing. We want you to be in this space of how do I solve this issue? What are my ideal jurors really thinking? That's what we want you to be thinking. Now, how do you know if you have a juror belief that is a defense point or tinged with defense fuckery? Well, I had a podcast called Ep. 227 The Sneaky Way. A Defense Point; gets in your Funnel or something, I can't remember the exact name. Again, you can go to sariswears.com/podcast and search for it. But in there I talked about the three ways that you can know if what you have a funnel is tinged with this.

The first one is the use of the words can and even. So, brain injuries can be invisible. People with a brain injury can look normal even if it was a traumatic one. So, that can and that even tends to have this tinge of you arguing with someone, which is the second way you know that you have a defense tinge principle because it's got this argumentative energy around it. Is it your principle or your funnel, can it stand on its own? Or is it an opposition to something? Meaning does it only exist if someone else is arguing against it? Or is it something that is true regardless of whether the defense ever had anything to say about anything at all? So, for example, people with brain injuries often look normal. That's a fact. There's no can, there's no even, there's no argumentative energy, it's just a fact. Now we know that we are onto an actual plaintiff principle. The third thing I said in there is what would you say if no one was arguing with you?

So, again, well, brain injured people often look normal. Then you say they can look normal, immediately, we're in that argumentative space. But when I was thinking about this podcast, I came up with two additional ways to know, because it's sneaky. It's like our saboteur. They come in there and they act like we're trying to be helpful with the agency thing. It was like, well, there's got to be a way to talk about this in voir dire. So, here's the two additional ones that I want to talk to you about. As you have that ideal juror profile, and now you're mining it for principles and creating your voir dire, I want you to be thinking about those three things.

And here's the fourth one, if the defense didn't get up and they never got to talk to the jury. So, it was just you and the jury. Let's just pretend.

Would the jury think of this issue that you want to handle in voir dire on their own? Would they come up with this on their own?

So, let's go back to the agency issue. If I got up and I was talking either in voir dire opening about this bad actor that caused this driver to do this thing because of these things they put in motion, is there a juror on the planet that would be like, "Yeah, but who is the employer of the employer? And who had control?

I'll tell you right now, no juror in the universe is going to think of that. Why? Because that's a legal argument. That's a defense argument. No juror on the planet that's going to pop into their head like, "Yeah, but wait a minute, what about this thing?" And now I know a lot of you will come up and they'll say, "Yeah, but the focus groups said this, or the focus groups said that." Let me share once again, my thoughts on focus groups. Focus groups are awesome. They're going to tell you a lot of great information. And most of that information is going to be negative, and that is exactly why we do it. We want to see where the things that I'm not seeing. A focus group, however, has no actual resemblance to a real jury. Why? One is you rarely ever do voir dire before you ask focus groups questions. You're not sequencing things properly, you're not timing things properly, you're throwing facts on them and seeing how they react.

Two, you are often not doing the focus group. In fact, in now this big data thing, there's nobody doing the focus group. There's literally not a human person standing in front of a jury asking questions with good non-verbals, and breathing, and all the things. It's like a typed out thing that people are answering on the interwebs somewhere. So, please treat groups as they should be treated, which is, this is some good information and some things we may need to think about. Do not take that and say, "Well, this is what my jury's going to think," because nothing could be further from the truth. As Coach Jody said, just today, actually, we're talking with a prospective client. She said, the way she looks at focus groups is, focus groups tell you the problems. What we do is help you with the solution. They're going to be like, "Here's all the problems," and then we're going to create a trial strategy that's going to solve all those problems.

So, again, if you gave the focus group some kind of legal argument and then ask them what they thought about it, okay, well, here's another factor you need to know is that the person who employed the driver is this person and whatever, and then they had thoughts about that. That's a different thing. But if nobody ever brought that up, would a jury bring it up? Then you're in defense territory if the answer is no. The last one I think is really interesting because I came to this myself and realized I was doing this.

If you are struggling, I mean really struggling to create a funnel around something or find even a principle about something, you're probably in defense land.

Because that's what I did with this client around this agency piece for weeks. We just swirled and swirled and we're like, how do we ask this in voir dire? How do we ask this in voir dire? What are we getting wrong? Why can't we get to this? And again, it wasn't until I talked to you brilliant Coach Jody, so I was like, agency's defense point. The whole point of agency is a defense argument. It's like the Spider-Man thing. They're trying to point the finger. "It was not us, it's them." And I went, "Ugh. That's why I've been struggling with my client." Of course, that's a sign. If you are struggling with creating a principle or a funnel around something, it's probably because it's defense oriented, because actual principles are easy. Things that people believe, I could just rattle them off. Things people believe about insurance, it's total shit show. Nobody wants to deal with insurance. Why? Because they bury you in paperwork. They assume you're lying until you prove otherwise when it should be the opposite. It's a huge headache, it's a scam. All the things.

What do people think about semi-trucks? That they're dangerous, that they can cause a lot of harm. I can come up with a million different principles really easy because they're principles. When I try to come up with something that will outdo or outmaneuver a defense point, I get stuck and so will you.

So, the problem with the ideal juror profile is you're using it for the wrong reasons. You're trying to find the fix to the defense point when it really is meant to show you that your ideal juror exists. And that once you build those beliefs, that there are principles in there that you can mind for, and then start building your funnels.

Hope that helps.

Talk to you next week.

Have you ever wished that you knew what the jury was thinking? Well, grab a pen and paper because I'm about to give you instant access to a free training I created for plaintiff trial attorneys called Three Powerful Strategies to Help You Read a Juror's Mind. It's going to help you to understand what the jury is thinking, so you'll feel confident to trust them and yourself in the courtroom.

Ready for the address? Go to sariswears.com/jury. Enjoy.